Smt. Ratna Saha vs The State Of West Bengal & Ors
2021 Latest Caselaw 179 Cal

               IN THE HIGH COURT AT CALCUTTA
                   Civil Appellate Jurisdiction
                          Appellate Side


Present:-   Hon'ble Justice I. P. Mukerji
            Hon'ble Justice Kausik Chanda

                      FMA No. 1020 of 2012


                        Smt. Ratna Saha
                               Vs.
                 The State of West Bengal & Ors.

For the Appellant               :    Mr. Lakshmi Kanta Pal,
                                     Mr. Bandhu Brata Bhula, Advs.


For the Respondents/            :    Mr. Tapan Kumar Mukherjee, Sr. Adv.

Opposite Parties                     Mr. Somnath Naskar, Adv.


Judgment on                    :     14.01.2021



Kausik Chanda, J.:-

The appellant was appointed as Headmistress of an unrecognized

secondary school, namely Palaspai Anchal Gita Rani Dhara Balika

Vidyalaya in Hooghly district on February 9, 1984. The school was

recognised by the West Bengal Board of Secondary Education with effect

from May 01, 1992. When the school was recognised, the appellant's

service was approved as the Teacher-in-Charge with effect from the said

date instead of Headmistress as she had completed about 8 years of

service and did not have the required 10 years teaching experience at the

time of recognition of the school.

(2) The relevant District Inspector of Schools by a Memo No. 2080

dated December 31, 1993, requested the Director of School Education

West Bengal to consider approval of appointment of the appellant as

Headmistress. The relevant part of the said letter dated December 31,

1993 is reproduced below:-

"Now the question arises whether on the basis of the

direction of the Hon'ble Court Smt. Saha be approved as the

headmistress of the school in relaxation of the provisions

contained in the G.O. No. 33 Edn (S) dated 7.3.1998 prescribing

the qualification of the Headmaster/Headmistress and in

consideration of the fact that she has been rendering her services

as Headmistress w.e.f. 9.2.1984. Thus if the fact of her services

rendered w.e.f. 9.2.1984 may be taken to be account as a very

special case she might be approved as Headmistress w.e.f.

9.2.1994 i.e. completion of 10 years of services in conjunction of

unapproved and approved service taken together."

(3) Such request was turned down by the Director of School Education

on July 11, 1994, by one line observation that the appellant had no

requisite experience of teaching.

(4) The appellant, thereafter, filed an application under Article 226 of

the Constitution of India being W.P. No. 8328 (W) of 2002 praying for

regularisation of her service as Headmistress of the said school which

was disposed of by a learned Single Judge of this Court on July 01,

2002, giving a direction upon the Director of School Education, West

Bengal to dispose of the representation made by the appellant by

passing a speaking and reasoned order within a period of eight weeks

from the date of such representation.

(5) Pending consideration before the Director of School Education,

West Bengal, some guardians of the wards of the said school filed a writ

application being W.P. No. 12314 (W) of 2002 (In Re.: Anita Pattanayak -

versus- State of West Bengal) against the appellant praying, inter alia, for

restraining the Director School Education and other authorities of the

State from appointing the appellant as Headmistress of the school.

(6) A learned Single Judge of this Court passed an interim order on

the said application on September 17, 2002, the relevant part of the said

order is quoted below:-

"The respondent no. 9 had not been appointed and

recognized to have been appointed as Headmaster of the

recognised institution at any point of time. In that view of the

matter, the question of the respondent no. 9 being appointed as

headmistress of the institution does not and cannot arise. This

appears to be the prima facie view of mine, and accordingly, I

direct that until further orders, no one shall be appointed in any

teaching post of the institution in question until she has been

recognised to be appointed in such teaching post by the School

service commission."

(7) The Director of School Education in compliance of the order passed

on July 01, 2002 in W.P. No. 8328 (W) of 2002, disposed of the case of

the appellant by an order dated December 13, 2002, observing, inter alia,

as follows:

"The petitioner is an M.A. in Political Science as well as in Music is

being taught in the school as a subject besides, she had English

and Bengali at the degree level. She passed M.A. in Political

Science in 1979 and M.A. in Rabindra Sangeet from Rabindra

Bharati University in 1983 she passed B.ED. Examinattion from

the University of Calcutta in 1981 she has completed 10 years

teaching service/experience in a recognised High School on 1-5-

2002. Thus, as on this day, she is qualified for being appointed as

Headmistress. But in terms of the directions given by Hon'ble Mr.

Justice Barin Ghosh in W.P. NO. 12314 (W) of 2002 dated

17.9.2002, the question of the petitioner's being appointed as

Headmistress of the institution does not and cannot arise."

(8) The writ petition being W.P. No. 12314 (W) of 2002 (Anita

Pattanayak versus State of West Bengal) was, however, dismissed on

September 16, 2004, by a learned Single Judge of this Court holding,

inter alia, that the writ petitioners had no locus-standi to file such a writ

petition. The appeal against the said order was also dismissed on

September 23, 2009, by a Division Bench of this Court.

(9) In the year 2005, after the dismissal order dated September 16,

2004, the appellant filed the present writ application for implementation

of the order dated December 13, 1993 passed by the Director of School

Education praying, inter alia, approval of her appointment as the

Headmistress of the school with effect from May 01, 2002 along with all

consequential service benefits.

(10) By the order impugned in this appeal, the learned Single Judge

dismissed the said application holding that the appellant had completed

10 years teaching service only on or about May 01, 2002, but the School

Service Commission Act, 1997 came into effect from November 01, 1997.

Therefore, the appellant obtained requisite qualification to be considered

as Headmistress after the School Service Commission Act, 1997 had

come into force. Therefore, the appellant could not be appointed as

Headmistress of the relevant school.

(11) To assail the order of the learned Single Judge, the appellant

submits that the learned Single Judge has failed to take into

consideration the observation made by the Director School Education in

his order dated December 13, 2002. The Director of School Education

categorically held that the appellant was eligible to be appointed as the

Headmistress of the school but due to interim order passed on

September 17, 2002 he could not appoint the appellant as the

Headmistress. Since the writ petition itself and the appeal were

dismissed, there was no legal bar to appoint the appellant as the

Headmistress. It has, further, been submitted that the School Service

Commission Act, 1997 was not applicable to this case. It has been

suggested that the appellant had retired from the service and she should

be given the monetary benefits by revising her pension after notional

fixation of her pay scale at least treating her as the Headmistress on the

date of her retirement i.e September 30, 2014.

(12) The State opposes the prayer submitting that the petitioner was

never appointed as the Headmistress of the school and as such no

financial benefit can be given to her as the Headmistress of the school.

(13) The State submits that when the petitioner was appointed as the

teacher-in-charge of the school, the Management of recognised Non-

Government Institution (Aided and Unaided) Rules, 1969 was in force. A

teacher, merely by completion of 10 years service as teaching staff of a

school, automatically did not qualify to be appointed as Headmaster or

Headmistress unless he or she was successful in the selection process

competing with the other eligible teachers.

(14) The State further contends that in the year 1997 when the School

Service Commission came into being, the appellant had completed only

four years of approved service which meant she was at that point of time

not even eligible to participate in the selection process for the post of

Headmistress as per the recruitment rules framed under the

Management of recognised Non-Government Institution (Aided and

Unaided) Rules, 1969. Therefore, she did not acquire any vested right in

her favour to be appointed as Headmistress under the old rules which

could be taken away by the School Service Commission Act, 1997.

(15) The State urges that observations of the Director of School

Education in his order dated December 13, 2002 with regard to the

eligibility of the appellant to be appointed as Headmistress was,

therefore, not in accordance with law and no mandamus can be issued to

enforce such order.

(16) Before we delve into the merit of the case it should be borne in

mind that appointment of organising teachers is not a fresh

appointment. It is a regularisation of service as a consequence of

recognition of the school. Right of such regularisation of organising

teachers flows from various circulars issued by the State itself from time

to time even after the School Service Commission Act, 1997 became

operative.

(17) In this case, the appellant was appointed as Headmistress on

February 09, 1984. The school was recognised on May 01, 1992 and

within two years from that date the appellant acquired 10 years of

teaching experience taking into consideration the service rendered by her

before the school was recognised. The request of the concerned District

Inspector of Schools made by the communication dated December 31,

1993 was turned down by the Director of School Education though the

regularisation of appointment of the appellant as the Teacher-in-Charge

was an express acknowledgement of the service rendered by the

appellant before the school was recognised. It was illogical to suggest

that the appellant could be appointed as Teacher-in-Charge considering

the service rendered by her before the recognition of the school but the

same service could not be counted towards her experience for

appointment of Headmistress of the school

(18) The Director of School Education, while considering the case of the

appellant pursuant to the order dated July 01, 2002, of this Court, took

note of a government circular being G.O. No. 302-SE(S) dated

05.03.2001 wherein it was, inter alia, provided that Headmaster of a

Junior High School, who did not have requisite qualification of a

Headmaster of a Secondary School, might be appointed as Teacher-in-

Charge, if the school was upgraded as Secondary School. Such Teacher-

in-Charge might get approval as Headmaster of the upgraded school if he

acquired the qualification and experience required for the post of

Headmaster of a High School within a period of 3 years from the date of

upgradation of the school.

(19) The appellant was initially appointed as Headmistress on February

9, 1984. The school was recognised with effect from May 1, 1992 and the

appointment of the appellant was approved as Teacher-in-Charge of the

school on the same date. She acquired the requisite 10 years of teaching

experience within two years from the date of recognition of school. The

controversy before the Director of School Education revolved around as

to the effective date of the regularisation of the initial appointment of the

appellant as the Headmistress consequent upon recognition of the

school. In the facts scenario as stated above the School Service

Commission Act, 1997 which was operative from November 1, 1997, had

no manner of application.

(20) The Director of School Education, however, by his order dated

December 13, 2002, held that the appellant had completed 10 years of

teaching in the recognised school on May 01, 2002, and as such she was

qualified for being appointed as a Headmistress from that day.

(21) When the State authority itself was of the considered view that the

appellant's service was entitled to be regularised as a Headmistress from

May 1, 2002, and the appellant sought implementation of the said order

by filing the present writ petition, the learned Single Judge ought not to

have declined to grant benefit of the order on the ground of School

Service Commission Act, 1997 as it had already been discussed that the

appellant's case was not attracted by the said Act. Fact remains that the

appellant had had the requisite academic qualification and experience to

be appointed as Headmistress. She was the head of the organisation even

before the recognition of the school. She performed all duties of the

Headmistress as the Teacher-in-charge of the school from the date on

which the school was recognised till her retirement. She had to weather

the frivolous litigations filed with the sole object to resist her

appointment as Headmistress of the school. Throughout her service

career she had been subjected to the ignominy of discharging the duties

of a Headmistress without enjoying the status and monetary benefits

attached to the said post.

(22) To subserve the interest of justice, the order of the learned Single

Judge is set aside and the appeal is allowed directing the respondents to

pay the monthly pension of the appellant treating her to be appointed as

the Headmistress of the school on May 01, 2002, together with arrear

pension within a period of eight weeks from date.

(23) Accordingly, F.M.A No. 1020 of 2012 is allowed without any order

as to costs.

(24) Urgent certified website copy of this judgment, if applied for, be

given to the parties upon compliance with all requisite formalities.

(Kausik Chanda, J)

I. P. MUKERJI, J.-

I have had the privilege of reading in draft the judgment proposed to be

delivered by my learned brother. I am in agreement with the conclusion

reached by his lordship.

I would like to add a few words of my own. The appellant appears to have

served as an organizer teacher from 9th February, 1984. On 1st October,

1992 the school was accorded recognition by the respondent authorities

with effect from 1st May, 1992.

On 30th December, 1993 the appellant was appointed as teacher-in-

charge of the school with effect from 1st May, 1992.

On 17th September, 2002 this court in another writ application [WP

12314(W) of 2002] passed an interim order that no one should be

appointed in any teaching post in inter alia, the said school until he or

she was appointed by the School Service Commission.

In obedience to the order of this court made on 1st July, 2002 in an

earlier writ [WP 8328(W) of 2002], on 5th December, 2002 the Director of

School Education, West Bengal considered the case of the appellant. He

noted that she was qualified for being appointed as headmistress but

because of the said interim order dated 17th September, 2002 she could

not be so appointed. On 16th September, 2004 the writ application [WP

12314(W) of 2002] in which the interim order dated 17th September,

2002 was made, was dismissed by this court.

Now, I quote the notification dated 21st September, 2007 made by the

School Education Department, Secondary Branch, Government of West

Bengal in exercise of its power conferred by clause (d) of sub-section (2)

read with sub-section (1) of Section 17 of the West Bengal School Service

Commission Act, 1997:

"3. Method of recruitment.- The appointment of persons to the post mentioned in column (2) of Schedule I shall be made by selection (direct recruitment) through the Regional Commission in the manner as specified in rule 7.

4. Names of post, qualification and age.- (1) The name of post and its qualification shall, subject to rule 5, be such as specified respectively in columns (2) and (3) of Schedule I: Provided that a person having the desirable qualification mentioned in column (2) against the posts mentioned in Sl. Nos. 4, 5 and 6 of column (1) of Schedule I shall, if qualified in written examination, get preference over the candidate, who has qualified in written examination but has no desirable qualification.

(2) The age-limit for the post referred to in column (2) shall be such as specified in column (4) of Schedule I:

Provided that the person who is already in service on the approved post of Teacher or non-teaching staff of any School or Madrasah may apply for the post of Assistant Teacher with maximum age of 55 years as on 1st January of the year of advertisement.

7. Manner of selection of Teacher.- (1) Selection to the post of the Teacher shall be made on the basis of the results of the Regional Level Selection Test comprising written examination conducted by the Central Commission, evaluation of qualifications and personality tests of the candidates in the manner as specified in Schedule II.

(2) The Central Commission may, in its discretion, fix qualifying marks, to be scored by the candidates, in written examination or in aggregate or, in both and relax the qualifying marks on reasonable grounds for reasons to be recorded in writing."

SCHEDULE I [See rules 3 and 4]

Sl. No. Name of Educational qualification Age posts including professional limit qualifications

1. Headmaster/ Essential: Upto Headmistress of (i) Master's Degree from a UGC 55 High /Higher recognized University with at least years Secondary School 45% marks both at the Secondary and High Level and Higher Secondary Madrasah. Level, 40% marks in the Honours subject at the Honours Level or 45% marks at the Pass Level for a candidate without having Honours Degree and 40% marks at the Post Graduate Level, with degree in Bachelor of Teaching/Bachelor of Education/Post Graduate Basic Training from any recognized University or any training recognized by the State Government as equivalent to Bachelor of Teaching/ Bachelor of Education/ Post-Graduate Basic Training from a Teachers' Training Institution duly recognized by the National Council for Teacher Education (NCTE)/ Rehabilitation Council of India (RCI) in the relevant academic session:

                                Provided that the above criteria of
                                marks shall not apply to a Head
                                Master/      Head      Mistress      in
                                approved        service     in      Jr.
                                High/High/Higher          Secondary
                                School/Jr. High/High Madrasah;
                                (ii) Ten years' continuous teaching




                           experience in approved service in
                          a    Higher   Secondary     /High
                          School/High Madrasah/Jr. High
                          Madrasah/           Jr.       High
                          School/Senior           Madrasah
                          recognized by the West Bengal
                          Board         of        Secondary
                          Education/West Bengal Council of
                          Higher Secondary Education/
                          West Bengal Board of Madrasah
                          Education    on    the   date    of
                          advertisement.
                          Desirable:
                          Knowledge of Islamic Studies and
                          culture   for    the    post     of
                          Headmaster/Headmistress          of
                          High Madrasah."

The said rules provide for information regarding existing and future

vacancies, to notify the vacancies by advertisement, the form of

application to be made by candidates, submission of application,

selection of candidates etc. (see Rules 8, 9, 10, 11 and 13 and the

selection process for the post of Headmaster etc.)

After coming into force of the said Act and the notification made

thereunder, in the usual course, a vacancy in the post of a

Headmaster/Headmistress of a school was to be filled up following the

above procedure.

However, take the example of a school which was unrecognized and was

granted recognition by the government prior to coming into force of that

Act. Also assume that the school had a teacher-in-charge like the

appellant. It would be absurd, if on recognition of the school, the

organizing staff including the Headmaster or Headmistress were turned

out of the school, to be replaced by a new set of teachers including a

Headmaster recruited by the above procedure. By the notification dated

5th March, 2001 the government conceived of this situation and took the

decision that when a school was upgraded, the Headmaster would be

eligible to function as such if he was possessed of the requisite

qualification and experience. This notification was applied to the case of

the appellant by the Director in his decision dated 13th December, 2002

where he said that the appellant, having the necessary qualification and

10 years' teaching experience was eligible to be appointed as

headmaster/headmistress but could not be so appointed because of the

operation of the said interim order.

The order of the Director did not say that the appellant was eligible to be

appointed but had to undergo the selection process under the said Rules.

The appellant was entitled to believe that on vacation of the interim

order, the decision of the director would be given effect to by appointing

her as the Headmistress. Having waited for the appointment to be made

and the appointment not having been made, she preferred the instant

writ on or about 11th May, 2005 from which this appeal arises. In the

writ application she sought a writ of mandamus commanding the

respondents to "grant approval of the appointment of the petitioner as

the Headmistress of the school with effect from 1st May, 2002".

In the writ the respondents did not say that the order of the director was

invalid. They did not file any affidavit-in-opposition. It can be safely

presumed that they accepted the premises on which the Director based

his order.

Some six years after filing of the writ, the matter was heard before the

learned single judge. At that time, for the first time, a submission was

made from the bar that the appellant had to undergo a selection process

under the said Act and Rules.

Without going into any other question, I am of the view that the

respondents directly or indirectly had led the appellant to believe that the

decision of the director was final and that it could not be given effect to

because of the said interim order of this court. It follows that the

appellant was made to believe that on vacation of the interim order the

decision of the Director would be carried out by appointing her as the

Headmistress. In my opinion, this gave rise to a legitimate expectation in

the appellant. Moreover, by their conduct the respondents are estopped

from denying or implementing the order of the director.

It is here that equity should intervene to relieve the appellant of her

hardship.

I endorse the order proposed by my learned brother.

(I. P. MUKERJI, J.)